PFAS Update: New Drinking Water Regulations and Clean-Up Actions

by Samuel Ballard, Lauren Thomas, and Danielle Lam

The federal government has recently taken several actions to further regulate per- and polyfluoroalkyl substances (“PFAS”) by beginning the process to update the drinking water standards under the Safe Drinking Water Act (“SDWA”) and by enacting the National Defense Authorization Act (“NDAA”), which amends sections of the Toxic Substances Control Act (“TSCA”) and the SDWA.

As reported in the April and July 2019 editions of The Lone Star Current, PFAS are comprised of a diverse group of man-made chemicals, which are used in a variety of industries for their stain-resistant, waterproof, and nonstick properties. The most common types of PFAS chemicals include perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”). These chemicals are found in products such as non-stick cookware, food packaging, water-resistant fabrics, and firefighting foam. EPA and many state agencies have issued a number of regulations over the past year to address these “forever chemicals,” as they are persistent in the environment and studies indicate that they are carcinogens.

The SDWA requires EPA to make regulatory determinations every five years to determine whether to begin the process to promulgate a national primary drinking water regulation (“NPDWR”) for an unregulated contaminant. On March 10, 2020, EPA published its Preliminary Regulatory Determinations for Contaminants on the Fourth Drinking Water Contaminant Candidate List, which states that the three criteria required for promulgating an NPDRW for PFOA and PFAS are met. Specifically, EPA found the following: (1) “PFOA and PFOS may have an adverse effect on human health”; (2) “PFOA and PFOS occur in public water systems (“PWSs”) with a frequency and at levels of public health concern”; and (3) “regulation of PFOA and PFOS presents a meaningful opportunity for health risk reduction for persons served by PWSs.” To make these preliminary determinations, EPA collected data from the Unregulated Contaminant Monitoring Rule Program, the community water system survey, and from individual states.

EPA has particularly requested comment on whether it should consider additional data before making its final regulatory determinations. The comment period closes on May 11, 2020. EPA announced that after making a final determination, it will propose a NPDWR within 24 months of the final determination and will promulgate a final NPDWR within 18 months following the proposal.

Not only is the EPA taking further action to address PFAS, but the White House and Congress have recently taken additional steps, as well. On December 10, 2019, the White House signed the NDAA, adding 172 PFAS chemicals to EPA’s Toxic Release Inventory (“TRI”), which tracks the management of certain toxic chemicals. Effective January 1, 2020, facilities that manufacture, process, or otherwise use PFAS must report PFAS releases by July 1, 2021. Additionally, the NDAA amends the TSCA to require EPA to promulgate a rule requiring any person who has manufactured a PFAS substance since January 1, 2011 to submit a report documenting those manufacturing activities. Not only that, but the NDAA also requires PWSs serving more than 10,000 people to now specifically monitor PFAS.

Furthermore, the NDAA requires the Department of Defense (“DOD”) to phase out use of military firefighting foam, or aqueous film forming foam (AFFF), by October 1, 2024. DOD is now required to enter into agreements with municipalities and water utilities adjacent to U.S. military installations to share PFAS monitoring data. However, the NDAA does not go as far as restricting PFAS discharges into drinking water supplies under the Clean Water Act (“CWA”) or requiring utilities to reduce the amount of PFAS in tap water under the SDWA.

DOD estimates that PFAS cleanup on military installations will now cost at least $3 billion, as reports indicate that PFAS in AFFF has possibly affected 401 military installations across the country. As of March 2020, the U.S. Air Force has already spent almost $500 million in cleaning up PFAS. Also of note, the Navy has a $60 million budget for its cleanup efforts in fiscal years 2020 and 2021, and is taking the lead on finding AFFF alternatives.

While the NDAA is currently working to address PFAS, Congress has recently proposed additional federal legislation to provide financial assistance for testing and treatment. On March 12, 2020, Senator Jeanne Shaheen (D-N.H.) introduced the Providing Financial Assistance to States (PFAS) for Testing and Treatment Act. This proposed legislation would provide $1 billion annually for ten years to remove PFAS from groundwater and drinking water wells, as well as provide testing and treatment of private wells. It would also create a new grant program that would provide $1 billion annually for ten years. This particular piece of legislation will be worth monitoring, as it may result in future proposed legislation to address PFAS removal from other specific sources, including landfills. Currently, Vermont, Michigan, New York, New Hampshire, California, and Connecticut are among the states actively testing and investigating PFAS that end up in the waste stream.

Federal agencies and Congress are increasingly regulating PFAS over time. The effects of increased regulation will inevitably directly impact state and local governments, public water systems, landfills, and other stakeholders. Therefore, it is important to monitor these actions and stay informed of regulatory changes.

Sam Ballard is an Associate in the Firm’s Air and Waste Practice Group and Lauren Thomas is an Associate in the Firm’s Water Practice Group. If you would like additional information related to this article or other matters, please contact Sam at 512.322.5825 or sballard@lglawfirm.com, or Lauren at 512.322.5850 or lthomas@lglaawfirm.com. Danielle Lam is a law clerk at the Firm and a third-year law student at the University of Houston Law Center.